GOP's Letter to Iran Flirts with Treason

By Dick Polman

Let me put this as charitably as I possibly can:

The open letter to Iran's ruling mullahs, authored by Tom Cotton, a Senate Republican freshman with zero national security credentials, and signed by 46 party colleagues, is a pathetic partisan stunt that tramples on presidential turf and betrays two centuries of American foreign policy tradition.

In seeking to undercut the president and his nuclear negotiators - by warning Iran that any agreement with Obama could be killed by the next president "with the stroke of a pen" - these Republicans embarrass themselves and the country they purport to speak for.

According to Senate historians, this is the first time - ever - that a band of lawmakers has contacted foreign leaders for the express purpose of sabotaging a president's diplomatic efforts. It's bad enough that the letter to the mullahs is so condescending("you may not fully understand our constitutional system"). What's far worse is that it flirts with treason.

I don't use the t-word lightly. I'll simply point out that the Republican letter, at minimum, violates the spirit of 18 U.S.C. 953 (the federal Logan Act):

"Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both."

The Logan Act was enacted in 1799. And in 1800, ex-Secretary of State and future Supreme Court justice John Marshall crafted a principle that has stood the test of time (until now, apparently): "The president is the sole organ of the nation in its external relations, and its sole representative with foreign nations." Meaning that when the U.S. made policy abroad, it needed to speak with one voice. Indeed, Marshall's "sole organ" doctrine has since been sustained by the high court, which ruled in 1936 that the president has the lead role on the world stage. As lopsided majority of justices put it, "the President alone has the power to speak or listen as a representative of the nation."

Regardless of the merits, or demerits, of President Obama's negotiations with Iran, the GOP's open letter is anti-constitutional treachery. And even while it presumes to lecture the Iranians about the American system, it gets the facts wrong.

The letter says that the nuclear deal could be scuttled by the Senate, because "the Senate must ratify it by a two-thirds vote." But in reality, here's what Senate's own website says: "The Senate does not ratify treaties. Instead, the Senate takes up a resolution of ratification, by which the Senate formally gives its advise and consent, empowering the president to proceed with ratification." Jack Goldsmith, an assistant attorney general and Defense Department counsel under President Bush, says this sounds like a technical distinction, but nevertheless, "in a letter purporting to teach a constitutional lesson, the error is embarrassing."

Basically, the Republican letter claims that no nuclear deal is valid without Senate approval. Wrong. Modern presidents have negotiated scores of foreign deals that haven't required Senate approval. Scholars of government point out: "Since the 1940s, the vast majority of international agreements have been completed by presidents as executive agreements rather than as treaties." Heck, in 1987, GOP saint Ronald Reagan forged an agreement called the Missile Technology Control Regime, to curb the proliferation of ballistic missiles, especially among nations deemed hostile to America.

Whatever. The good news is that the GOP's letter has been met with a shrug in Tehran. Foreign Minister Mohammad Javad Zarif says it "has no legal value and is mostly a propaganda ploy." He should know. Zarif has three degrees in international law and relations - all of them earned at American universities.

How embarrassing for us that Iran's foreign minister, of all people, can probably teach Tom Cotton and his saboteurs a thing or two about how the American system works.

Dick Polman is the national political columnist at NewsWorks/WHYY in Philadelphia (newsworks.org/polman) and a "Writer in Residence" at the University of Philadelphia. Email him at dickpolman7@gmail.com.

This column has been edited by the author. Representations of fact and opinions are solely those of the author.